The right to join with your friends and neighbors in protest or peaceful assembly is critical to a functioning democracy and a right guaranteed by the Constitution.

That’s why we took South Dakota to court earlier this year.

Now, a federal court has blocked enforcement of the unconstitutional provisions of several South Dakota laws, including the recently-enacted “Riot Boosting Act," that threaten activists who encourage or organize protests, particularly protests of the Keystone XL pipeline, with fines, civil liabilities, and/or criminal penalties of up to 25 years in prison.

The so-called “Riot Boosting Act,” which was introduced and passed in a 72-hour period in the final full week of the 2019 session of the South Dakota Legislature, was clearly intended to suppress constitutionally-protected, peaceful protests of the Keystone XL pipeline. Think about it: Even the possibility of facing litigation brought on by the state could chill the speech of peaceful protesters and their supporters. Just the threat of having to hire an attorney to defend yourself against the state in court and explain why your support of the pipeline protests was not riot-boosting is precisely what chills speech.

While the state has an interest in criminalizing participation in a riot, the state's laws defining a riot "go far beyond that appropriate interest and ... do impinge upon protected speech and other expressive activity as well as the right of association,” U.S. District Judge Lawrence L. Piersol wrote in his order.

By granting this preliminary injunction, the court recognizes that these vague and overbroad laws threaten the First Amendment rights of South Dakotans on every side of the issue.

"Sending a supporting email or a letter to the editor in support of a protest is encouraging. Giving a cup of coffee or a thumbs up or $10 to protesters is encouraging the protesters. Holding up a sign in protest on a street corner is encouraging. Asking someone to protest is soliciting,” Piersol wrote.

Piersol also pointed out that Martin Luther King Jr. would have been liable for “riot boosting” under South Dakota's law for writing his “Letter from Birmingham Jail.”

“Imagine that if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result?” Piersol wrote. “Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law[.]”

The lawsuit was filed by the American Civil Liberties Union, the ACLU of South Dakota, and the Robins Kaplan law firm on behalf of four organizations: the Sierra Club, NDN Collective, Dakota Rural Action, and the Indigenous Environmental Network; and two individuals: Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network. All are currently protesting or planning to protest the Keystone XL pipeline and/or encouraging others to do so and are thrilled with the news of the preliminary injunction:

  • Dallas Goldtooth, Indigenous Environmental Network: "As Dakota, it is our duty to protect the land and water, and speaking up on behalf of these sacred elements is essential to that endeavor. This decision is a good step in protecting our right to organize, educate and promote a sustainable future for all generations of life.”
  • John Harter, Dakota Rural Action: “Our opposition to the pipeline construction may agitate Gov. Noem, but the First Amendment guarantees us the right to make our voices heard. We’re thrilled that the state is blocked from enforcing the anti-protest laws as the case goes forward. The government has dismissed Native Americans, South Dakota farmers and ranchers and others who oppose the Keystone XL pipeline, but the pipeline, if constructed, would have a substantial impact on all of our lives.”
  • Mark Winegar, Sierra Club of South Dakota: “We’re glad to see the court block these oppressive laws from being enforced while our legal challenge continues. The state's attempt to criminalize free speech and intimidate peaceful protesters is clearly unconstitutional, and we are confident that the court will ultimately reject it altogether
  • Nick Tilsen, NDN Collective: “The court’s ruling today of a preliminary injunction to the anti-protest laws are a step in the right direction. It’s an indication the court may rule in favor of free speech and not in favor of oil companies using the American democracy for their own profit and destruction of the planet.  Our voices are strong and grounded in our identity and our efforts to protect Mother Earth. Today’s ruling is a nod from the courts that they are working to make sure our efforts to stand up for human rights and Mother Earth are done so unencumbered from illegal anti protest laws.”

South Dakota’s “Riot Boosting” Act joins a recently growing number of government efforts to stifle protests, particularly those led by Indigenous and environmental activists, often in opposition to pipelines.

No one should have to fear the government coming after them for exercising their First Amendment rights. We’re prepared to stand on the front lines and defend your right to peacefully protest and express your opinions freely.

We hope you’ll join our efforts to fight back as an ACLU legal observer, volunteer, or supporter. Our voices won’t be silenced. Will yours?

Stay informed

ACLU of South Dakota is part of a network of affiliates

Learn more about ACLU National